Sign stirs up controversy

TRACI ANDERSON

Published 12:32 pm, Monday, April 25, 2016

Its job was to inform travelers along M-25 that a motel exists for those who need a place to stay. It was knocked down in an accident and put right back up again. It had been at its location by the highway since 1962.

But according to the Michigan Department of Transportation, it was illegal and had to come down. On Jan. 3, it did.

How it all started

The trouble began months after Ivan Bright and Leanna Atkinson purchased the Port Austin Motel in the fall of 2000 from Frank and Joan Higgins.

"We were getting along fine with our neighbor, Mr. (Terry) Kelly," Bright said. "Then we get this letter from him in the spring of this year saying the sign is his, we can't do anything with the sign without his consent, and we owe him $600 a year in rent because the sign (was) on his property. I wasn't about to pay it because the sign (wasn't) on his property, and the previous owner didn't have to pay him rent."

He said when he bought the motel, he was aware the sign was on a state easement, otherwise known as the right of way. The area is measured from the center of the highway, and in this case, stretches 50 feet to either side of the road. In other locations, the right of way area is less than or more than 50 feet, depending on the location. Signs are prohibited on the right of way because they can cause sight obstruction.

"No one let on that this was a problem when we purchased the motel," Bright said of the sign being on state easement. "I knew I had to pay a yearly permit fee of $50 to the state for the sign, which I did."

After Bright and Atkinson refused to pay the $600 annual rent to the Kelly, Atkinson said Kelly took matters into his own hands.

"He knocked letters off of the sign, he cut the wires to the sign, and was very destructive," she said. "We called the police, but it took them 12 hours to get here, and they wouldn't help."

That's when they called attorney Doug Lee in Bad Axe, who sent a letter to Kelly ordering him to have the sign repaired and warning him of litigation if he did not comply. The sign was repaired.

Kelly sent a letter to the village council during the summer that said he had recently become aware of the sign being in violation of state guidelines.

"I am requesting that the owner of the sign…be directed to remove the sign immediately," Kelly wrote in the letter.

The state gets involved

Mark Gembarski, village zoning inspector, said he checked into the issue by calling MDOT.

"I called, and they told me Terry had already called MDOT to get the rules, and they were going to investigate the matter," Gembarski said.

State contracted workers visited the site to measure how far the sign was from the center of M-25, and discovered the sign was indeed in the right of way and was illegally located.

"We received a letter from the Spicer Group (in September) that said the sign had to be taken down or moved within 30 days because it was on state easement," Bright said. "But if we'd move the sign, it would be on Mr. Kelly's property and he would be after us to pay him the $50 per month. We knew then that Mr. Kelly had called MDOT to complain."

The neighbor's side

Kelly, who has owned the property the sign is adjacent to for 20 years, said he did discuss a rental agreement with the motel owners, but when they informed him the sign was not on his property because it was on state easement, he called MDOT for the state guidelines.

"Once I found out the sign wasn't on my property, I was no longer involved in the matter," he said. "I can't rent out a sign that's in violation of state rules. It's out of my hands."

Kelly said he did not ask for rent from the former motel owners due to an agreement made between the parties, but told them and the real estate company that listed the motel that there would be a formal rental agreement with the next owners.

"My main concern was liability," he said. "I thought the sign was on my property, and I thought if anything would happen regarding that sign, litigation would fall on my lap, not the motel owners'. I wanted to protect my family."

Kelly wouldn't comment on the incident where the motel owners said he damaged the sign.

MDOT blames feuding neighbors

According to Ponce Espareza, department analyst for MDOT Bay Region office in Saginaw, the sign was taken down not because it was on the state right of way Ñ it was taken down because of the two neighbors not being able to compromise on a rental agreement.

"The sign is in the state right of way, but it's still Mr. Kelly's property, and if the motel owners refuse to pay the lease asked for by the landowner, the landowner has the right to have the sign taken down," he explained.

He added that the state was under the impression the sign was out of the right of way and didn't think the sign was a problem.

"The sign was permitted under the Highway Advertising Act of 1972," he said. "The act didn't allow the sign to be on residential property - only business or commercial property. This sign, since it was on private property, has been a non-conforming sign since then, but because it was put up before 1972, it was allowed to be at its location. But the act doesn't allow the sign to be in the right of way."

He said the act included the requirement of a permit and a fee to be paid by the sign owner. One of the criteria for the sign permit is that the private landowner and sign owner consent about any required lease payments or other arrangements.

"If the motel owner signs the permit without having an agreement with the landowner, it's a misdemeanor," Espareza said.

What about the permit fee?

Bright questioned why he would still be required to pay the state a $50 sign permit fee if the sign was illegally placed.

"MDOT told me they collected the money in error, but I couldn't get my money back," he said. "That doesn't make any sense."

Tom Hawley, MDOT sign permits manager in Lansing, said even though the sign was in the right of way, the permit itself was valid.

"It's like a car license, which is a permit to drive on the roads," he said. "If someone pays for their license and then doesn't drive, he can't call up and say "I didn't drive at all this year. Can I get my money back for my license?" It doesn't work that way. The license still is valid as it still allows the person to drive his car.

"The sign permit is for a sign on privately-owned land, but even though the sign was on state-owned land, the sign still existed. It still advertised the motel."

Espareza said that if the sign was on the motel owners' property, an exception could be made and the sign wouldn't necessarily have to come down.

"But it's not - it's on Mr. Kelly's property, and if he doesn't want the sign there it becomes an encroachment issue," he said.

He added that because the sign is not on the motel owners' property, the grandfather clause does not apply in this case. The grandfather clause is a provision which allows a situation to continue which would not be allowed under a new law or regulation.

A "ticking time bomb"

"Really, Mr. Kelly has been very patient throughout all this," Espareza said. "The $600 is not an extravagant amount to ask for. The decision to have the sign removed is up to Mr. Kelly. Our hands are tied."

"That's not how I understand it," Kelly stated. "I really do feel bad for the motel owners. It's unfortunate that this blew up on them. It's been a ticking time bomb all these years.

"But this whole thing was initiated by them when they told me the sign was on state easement, not on my property. Really, they should have done more research before they signed the dotted line."

A protest

Dan Gannon, Port Austin Township Zoning administrator, said when he heard of the problem, he couldn't believe his ears.

"The motel owners called me up to ask me if there had been any violations regarding the sign, which there weren't," he related. "That's how I found out about this all…someone at MDOT should have some common sense. This sign is doing no one any harm."

According to Hawley, Gannon called him and said if Espareza was going to come and take down the sign, he would shoot him. Hawley said he hung up and called the state police. Gannon was not arrested. He had no comment on the matter.

As long as they could

Bright and Atkinson wanted to fight the state and took steps to prevent the sign from coming down, but to no avail.

"Doug Lee told us we could fight the state, but he was honest and told us it would cost a lot of money, which we don't have," Bright said. "We were told by MDOT we couldn't appeal the state's ruling until after the sign was down, anyway."

Bright said he and Atkinson called Huron County Commissioner Mike Gage, State Rep. Tom Meyer, R-Bad Axe, State Sen. Joel Gougeon, R-Bay City, and Gov. John Engler, trying to get help.

"Meyer's office called MDOT on our behalf, but they called me back and said nothing could be done, and the law was the law," Bright said. "I didn't hear from the others."

Bright said he wonders now what will happen to other signs in the area that also are in the state right of way.

"If mine had to be taken down, so should their's," he said.

To make matters worse, Atkinson said, they have to pay for the labor it took for the sign, which is now lying on the ground in front of the motel, to be removed.

"Mr. Kelly wanted it taken down, so he should have to pay for it," she said. She has not received a bill to date and is not sure what it will cost.

"I was told as much as $2,000, but we'll see," she said.

She added that the county workers who took down the sign were very kind and took great care to not damage the sign.

"They just couldn't believe that the sign had to come down," she said. "They really didn't want to do it, but they had to."

Motel future in jeopardy?

Atkinson and Bright are concerned about what this will do to their business.

"Without that sign there, no one knows we're down here," Bright said. "we're not right on the highway, and who's going to travel down this side road looking for a motel, especially since it's a dead end? I'm afraid this might drive us out of business. MDOT is shootin' us in the foot."

The couple, originally from Lapeer, bought the motel in the fall of 2000 and have been busy remodeling rooms. They plan on changing the name to Lost Pirate Inns and already have a pirate theme in the lobby.

"We've done a lot of work to fix this place up," Atkinson said. "This used to be known as a dump. People who stayed at this motel before we bought it probably won't come back, so we really don't have much repeat business yet. We're trying to shake that label, but if we won't be getting any business, we won't have the money to continue the remodeling."

"This could ruin our livelihood, our investment, and our home," Ivan said. "It makes me wonder if other motels in this area are behind this."

Hawley said there could be some help for the motel owners.

"MDOT has a program called TODS, or Tourist Oriented Directional Signage, which is for businesses that are on side roads," he explained. "It allows for the signage to be in the right of way. A company contracted through the state, Michigan Logos, Inc., installs the signs. There is a cost for the program, but it could help the motel owners."

Both a sign and a signal

The sign being down doesn't just affect the motel owners.

"I had a neighbor who has lived here for more than 30 years tell me she drove right by the road because the sign wasn't there," Atkinson said. "She drove right into town before realizing she missed her road. She said she realized the sign was the signal for her to turn for all these years."

Despite this major complication, the couple enjoys the area.

"We love Port Austin. It's a beautiful area and most of the people have been very nice," Atkinson said. "But there usually is at least one person that has to make things difficult."